On January 19, the Oregon State Bar House of Delegates approved an amendment to Disciplinary Rule 1-102, the rule prohibiting lawyers from engaging in 'conduct involving dishonesty, fraud, deceit or misrepresentation.' The amendment clarifies that there are certain lawful covert activities about which lawyers may advise clients without engaging in misconduct.
The change was in response to an Oregon Supreme Court decision in the disciplinary case In re Gatti. In the case, the attorney was accused of violating ethics rules when he posed as a doctor in phone calls to an insurance company that he was preparing to sue. The Court found that the lawyer had engaged in dishonest conduct in violation of the rule. The opinion also stated that as it was written, DR 1-102 does not include any exceptions to the 'dishonesty rule,' and as such it is misconduct for any lawyer to engage in misrepresentation or deceit, regardless of motive. The opinion further stated that the rule also prohibits lawyers from 'encouraging' others to engage in this conduct.
The opinion raised concern among lawyers who participate in undercover operations, including DAs and federal prosecutors who advise the police in sting operations, civil rights lawyers who investigate discrimination charges, and consumer advocates who investigate fraud. Some offices temporarily stopped certain undercover operations as they sought to amend the DR.
On January 19, the House of Delegates passed an amendment with a vote of 103 to 47. The proposed amendment has been forwarded to the Oregon Supreme Court for approval. The Court will hold a public meeting to consider the proposal on February 13, 2001.
The full text of Disciplinary Rule 1-102 follows, with the new amendment underlined. For more information, contact Sylvia E. Stevens, Asst. General Counsel, at (503) 431-6359 or (800) 452-8260, ext. 359 or firstname.lastname@example.org.
Proposed Amendment to DR 1-102
(Approved by OSB House of Delegates 1/19/01)
DR 1-102 Misconduct; Responsibility for Acts of Others
(A) It is professional misconduct for a lawyer to:
(1) Violate these disciplinary rules, knowingly assist or induce another to do so, or do so through the acts of another;
(2) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law;
(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) Engage in conduct that is prejudicial to the administration of justice;
(5) State or imply an ability to influence improperly a government agency or official.
(B) A lawyer shall be responsible for another lawyer’s violation of these disciplinary rules if:
(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer has direct supervisory authority over the other lawyer and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
(C) A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.
(D) Notwithstanding subsections (A)(1) and (A)(3) of this rule or DR 7-102(A)(5), it is not misconduct for a lawyer to supervise or advise about lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise consistent with these disciplinary rules.